Melancon v. Lamorak Insurance Co.

United States District Court, E.D. Louisiana

January 19, 2018

MELANCON ET ALv.LAMORAK INSURANCE COMPANY ET AL.

SECTION
I

ORDER & REASONS

Before
the Court is Plaintiff's motion to remand. R. Doc. 36.
Defendants respond in opposition. R. Doc. 53. Having heard
oral argument, read the parties' briefs, and reviewed the
applicable law, the Court now issues this Order &
Reasons.

I.
BACKGROUND

Plaintiffs
Sandra Melancon, widow of Tyrone Melancon, and Lynn Melancon,
daughter of Tyrone Melancon, filed this case in the Civil
District Court of Orleans and allege that Tyrone Melacon,
their husband and father, was exposed to asbestos when he
worked for Avondale Shipyard. This exposure, Plaintiffs
allege, resulted in Tyrone Melancon contracting mesothelioma.
In their petition, Plaintiffs assert the following theories
of recovery: negligence and failure to warn.

On
November 13, 2017, Defendants J Melton Garrett, Lamorak
Insurance Company, Huntington Ingalls Incorporated (Avondale
Shipyard's successor), and Albert Bossier, Jr. (together
“Huntington Ingalls”) removed the case to this
Court under the Federal Officer Removal Statute, 28 U.S.C.
§ 1442(a)(1). In support of its Notice of Removal,
Huntington Ingalls states that in deposition testimony given
for another case Tyrone Melancon said that he worked on Navy
Destroyer Escorts and Coast Guard Cutters. Therefore,
Huntington Ingalls asserts that this Court has jurisdiction
pursuant to the Federal Officer Removal Statute because
Huntington Ingalls was “acting under an officer of the
United States or an agency thereof” when it built the
Destroyer Escorts and Cutters in question. R. Doc. 1 at 4-5.
Additionally, Huntington Ingalls claims two federal defenses:
1) government contractor immunity and 2) pre-emption and bar
under the provisions of the Longshore and Harbor Workers'
Compensation Act (“LHWCA”). R. Doc. 1 at 6.

II.
PENDING MOTION

a.
Plaintiffs' Motion to Remand (R. Doc. 36)

Plaintiffs
argue that this Court does not have jurisdiction pursuant to
the Federal Officer Removal Status and avers that this Court,
along with other Eastern District and Fifth Circuit Judges,
have rejected identical removal arguments put forth by these
and other defendants. R. Doc. 36-1 at 2-5. Moreover,
Plaintiffs note that Courts have rejected Federal Officer
Removal arguments for military shipbuilders based solely on
evidence that the military required contactor-builders to
follow military plans and specifications. R. Doc. 36-1 at 6.

Looking
to the specific facts of this case, Plaintiffs claim that
“Avondale controlled all of the activities in regard to
the construction of commercial and Navy vessels” and
“government inspectors had absolutely no control over
nor did they direct the Avondale safety department.” R.
Doc. 36-1 at 15. Rather, Plaintiffs allege that “[t]he
Navy was a customer just like any other customer of
Avondale.” R. Doc. 36-1 at 15. Based on these facts,
Plaintiffs argue that Huntington Ingalls cannot meet the
requirements for Federal Officer Removal. Additionally,
Plaintiffs cite the deposition of former Navy ship inspector
at the Avondale Shipyards, Felix Albert, who testified that
“[t]he United States government inspectors neither
monitored nor enforced safety regulations. On the job safety
during the construction of vessels for the United States
government was the responsibility of Avondale Shipyards'
safety department.” R. Doc. 36-1 at 15.

Huntington
Ingalls alleges that Plaintiffs have brought a strict
liability claim against it because in paragraph 14 of the
complaint there are care, custody, and control allegations
similar to those held by the Fifth Circuit to allege strict
liability claims. R. Doc. 53 at 17. Huntington Ingalls argues
that these claims relate to its conduct under color of
federal office. R. Doc. 53 at 20. Huntington Ingalls also
argues that the “relating to” element is
satisfied by Plaintiffs' negligence claims under the new
test for this element. R. Doc. 53 at 21. Huntington Ingalls
argues that under Zeringue v. Crane Co., 846 F.3d
785 (5th Cir. 2017), the 2011 amendment to the federal
officer removal statute created a new, broader test that
merely requires an association or connection with the federal
office. R. Doc. 53 at 22, 27. Huntington Ingalls further
avers that the facts here are different from those in
Bartel v. Alcoa S.S. Co., 805 F.3d 169 (5th Cir.
2015), because here the Navy and Coast Guard required
Huntington Ingalls to use asbestos and maintained oversight
of the projects. R. Doc. 53 at 26.

Finally,
Huntington Ingalls argues that this case is properly removed
based on strict liability claims against Co-Defendant Foster
Wheeler. R. Doc. 53 at 43. Huntington Ingalls argues that
there are strict liability claims against Foster Wheeler for
use of asbestos in boilers that were installed on U.S. Navy
vessels. R. Doc. 53 at 44. Huntington Ingalls further argues
that Foster Wheeler meets all of the requirements of the
federal officer removal statute. R. Doc. 53 at 45-47.
Finally, Huntington Ingalls argues that it does not matter
than Foster Wheeler has withdrawn its notice of removal
because jurisdiction is determined at the time of removal. R.
Doc. 53 at 47. For these reasons, Huntington Ingalls asks the
Court to deny Plaintiffs' motion for remand. R. Doc. 53.

III.
LAW & ANALYSIS

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